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ANTHONY T. MCGARTLAND v. AMPCO-PITTSBURGH CORP. (05/02/80)

decided: May 2, 1980.

ANTHONY T. MCGARTLAND, APPELLANT,
v.
AMPCO-PITTSBURGH CORP., AND UNDERWRITERS ADJUSTING COMPANY, INSURANCE CARRIER, APPELLEES, AND COMMONWEALTH OF PENNSYLVANIA, WORKMEN'S COMPENSATION APPEAL BOARD



No. 115 March Term, 1979, Appeal from the Decision of the Commonwealth Court of Pennsylvania, entered January 23, 1979, at No. 419 C.D. 1977 (Appeal Allowed to Supreme Court at No. 1883 Allocatur Docket)

COUNSEL

Alexander J. Pentecost, Pittsburgh, for appellant.

David M. McCloskey, Will & Keisling, Pittsburgh, for appellees.

Eagen, C. J., and O'Brien, Roberts, Nix, Larsen, Flaherty and Kauffman, JJ.

Author: Flaherty

[ 489 Pa. Page 206]

OPINION OF THE COURT

Anthony T. McGartland (Claimant) appeals here from an order of the Commonwealth Court affirming an order of the Workmen's Compensation Appeal Board (Board) reversing a referee's decision awarding compensation for loss of use of Claimant's left hand for all practical intents and purposes.

Claimant suffered a work-related injury to his left hand in the course of his employment as a die setter. As a result, he eventually underwent an operation for the amputation of his first, second and third fingers leaving stumps of approximately three-fourths inch in length. Based on lay and medical testimony and on a personal observation of Claimant's hand, the referee made a factual finding that Claimant sustained the loss of use of his left hand for all practical

[ 489 Pa. Page 207]

    purposes and awarded compensation. On appeal to the Board, Claimant, accompanied by his attorney, appeared at the argument, and the Board had occasion to observe Claimant's hand. Based on this observation and nothing more, the Board unanimously reversed the referee's finding and award of benefits, stating

Normally, we would be powerless to intervene and would have to sustain his (the referee's) award if competent evidence can support it. However, during the argument of this case, this Board had occasion to observe Claimant's hand and his ability to function with it. Since we made this observation, we have in effect taken additional testimony and are not bound by the Referee's Findings of Fact. We are of the unanimous decision that the Claimant has not suffered the loss of use of his left hand for all practical intents and purposes.

Section 423 of the Pennsylvania Workmen's Compensation Act*fn1 provides:

In any such appeal the board may disregard the findings of fact of the referee if not supported by competent evidence and if it deem proper may hear other evidence, and may substitute for the findings of the referee such findings of fact as the evidence taken before the referee and the board, as hereinbefore provided, may in the judgment of the board, require, and may make such disallowance ...


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